PETITION TO HIS MAJESTY SHAIKH HAMAD BIN ISA AL KHALIFA

RE. HUSAIN ALI MOOSA

MOHAMED RAMADAN

______

PETITION FOR CLEMENCY

ON BEHALF OF THE HUMAN RIGHTS COMMITTEE

OF THE BAR OF ENGLAND AND WALES

The Bar Human Rights Committee of England and Wales (“BHRC”) is the international human rights arm of the Bar of England and Wales. It is an independent body concerned with protecting the rights of advocates, judges and human rights defenders around the world. The Committee is concerned with defending the rule of law and internationally recognised legal standards relating to human rights and the right to a fair trial. The remit of BHRC extends to all countries of the world, apart from its own jurisdiction of England & Wales. This reflects the Committee's need to maintain its role as an independent but legally qualified observer, critic and advisor, with internationally accepted rule of law principles at the heart of its agenda.

Introduction

1.  This petition is made in support of the applications for clemency made on behalf of Husain Ali Moosa and Mohamed Ramadan.

2.  On 29 December 2014, Husain Ali Moosa and Mohamed Ramadan were sentenced to death, having been convicted of murder and attempted murder by the Fourth Superior Criminal Court of Bahrain (presiding Judge, Ali Khalifa Al-Zahrani). On 27 May 2015, the First Supreme Criminal High Appellate Court upheld the convictions and sentences. On 16 November 2015, the Court of Cassation rejected their appeals. The domestic judicial process has therefore been exhausted.

3.  The Bar Human Rights Committee of England and Wales notes that international law requires ‘super due process’ in capital cases. It is submitted that the procedures resulting in the death sentences have not met these exacting standards and the BHRC therefore supports the applications for clemency on the following grounds:

  1. Pre-trial failures including lack of access to defence lawyers and independent forensic medical examiners.
  2. Trial failures including restrictions on the involvement of defence lawyers and an inequality of arms with respect to expert medical evidence relating to allegations of ill-treatment and forced confessions.
  3. Evidence from an internationally renowned medical expert, which highlights significant breaches of the Istanbul Protocol in these cases.
  4. The lack of incriminating evidence beyond the disputed confessions.

4.  In addition, BHRC submits that the above grounds should be considered in the context of:

  1. Proven cases of serious mistreatment of detainees, by the Bahrain Independent Commission of Inquiry (BICI) – findings received and fully accepted by His Majesty.
  2. Serious ongoing international concerns regarding the human rights situation in Bahrain, as expressed at the May 2017 Universal Periodic Review.

The Death Penalty and ‘Super Due Process’

5.  The BHRC opposes the death penalty in all circumstances. BHRC notes that the tide of international opinion is against the continuance of capital punishment, with more and more countries abolishing it by law or abandoning it in practice[1]. On 15 January 2017, Bahrain executed three men by firing squad after a moratorium of nearly seven years. In a letter to His Majesty, dated 3 March 2017, BHRC noted that it was highly regrettable that a country that appeared to have abandoned capital punishment had now taken such a regressive step: one that will undoubtedly have an adverse effect on its international reputation[2].

6.  However, this petition goes further than expressing general opposition to capital punishment. International law requires ‘super due process’ wherever capital punishment is contemplated.[3] Judicial killings offend the rule of law unless procedures are so robust as to remove the possibility of error or unfairness as comprehensively as possible. In particular, this must be so where the context is civil or political conflict.

Relevant Facts: Prosecution Allegations and Evidence

7.  The Trial Court judgment[4] sets out the allegations against Husain Ali Moosa, Mohamed Ramadan and ten other accused. In essence the judgment records:

  1. Mohamed Ramadan obtained an explosive device, which was placed and set by Husain Ali Moosa in the Dayr area on 14 February 2014.
  2. Together with a crowd of others, some of whom were co-accused, the men lured police officers to the scene and then detonated the device, killing one officer and injuring others.

8.  Husain Ali Moosa, Mohamed Ramadan and ten other men were charged with murder, attempted murder and a number of other related offences.

9.  The prosecution evidence heard at trial consisted of:

  1. Testimony from five police and four CID officers.
  2. Confessions from Husain Ali Moosa, Mohamed Ramadan and four other defendants.
  3. Reports from the Crime Scene Division, the Criminal Investigations lab (relating to samples from the scene).
  4. Autopsy and medical reports relating to the victims.
  5. Photographs and video footage from a re-enactment.
  6. The criminal records of Husain Ali Moosa and six other defendants.
  7. Reports on the phones of two defendants.

10.  The police witnesses gave evidence that they were at the entrance to Dayr village when they were attacked by a group of men with Molotov cocktails and other weapons, to whom they gave chase. The bomb was detonated in the vicinity of the Nur al-Hidaya Grocery, near to the Khayf mosque, killing one officer and injuring others.

11.  On 21 February 2014, seven days after the bombing, Husain Ali Moosa and four other defendants were arrested. Husain Ali Moosa confessed under interrogation, asserting that he had planted the bomb, contained in a black plastic bag, at the instigation of one of the other defendants, Muhammed Makki. It had been supplied by MR. After planting the bomb, Husain Ali Moosa left the scene but later heard it explode.

12.  On a date unspecified in the judgment[5], Mohamed Ramadan also made admissions of a different nature. He asserted that he had agreed with Husain Ali Moosa to take part in the demonstration on 14 February 2014 and to attack police officers, but stated that neither himself nor Husain Ali Moosa were present when the bomb was detonated.

13.  Four other defendants made admissions under interrogation relating to involvement in the demonstration on 14 February 2014. Those admissions referred to the leading roles played by Husain Ali Moosa and Mohamed Ramadan in the demonstration but did not implicate them further. No other defendant made admissions with respect to the bombing.

14.  Notably, only Husain Ali Moosa made any admissions relating to the bomb. One of the other defendants, Mustafa Ahmad Yusuf Habib, stated that he saw Muhammed Makki place a black plastic bag near to the Grocery: an admission inconsistent with the confession made by Husain Ali Moosa.

15.  The scientific evidence indicated that the injuries sustained by the victims were consistent with a bombing and samples linked the victims to the scene. There was evidence regarding the physical construction of the explosive device and its means of detonation. There is no suggestion in the judgment that there was scientific evidence linking any of the defendants to the bomb or the scene.

16.  The antecedents relied upon by the prosecution, concerned previous convictions relating to unlawful assemblies and associated public order offences.

17.  The phone evidence indicated communications regarding the security situation and the breaking of shop CCTV cameras prior to assemblies.

Relevant Evidence: The Defence

18.  The judgment records that the defence submitted that the warrants and searches had been invalid, and that Husain Ali Moosa asserted that his confession had been induced by torture. The Court rejected the submission relating to the investigative shortcomings. The Court also rejected Husain Ali Moosa’s allegations of torture, holding that injuries to his wrists had been caused by handcuffs and an injury to his back had been caused by a fall when he tried to escape.

Verdicts and Sentences

19.  Husain Ali Moosa and MOHAMED RAMADAN were convicted of all counts and sentenced to death. Muhammed Makki was convicted of assisting the two and sentenced to life imprisonment. The other defendants were convicted of public order offences relating to the assembly and jailed for six years and fined.

Appeals

20.  The First Supreme Criminal High Appellate Court[6] and the Court of Cassation[7] heard and rejected appeals, upholding the findings and reasoning of the trial court.

Allegations of due process failures in these cases

21.  BHRC has been informed that:

  1. Trial lawyers for both Husain Ali Moosa and Mohamed Ramadan were refused access to the men at all stages prior to the trial and only had contact with them in the court room itself.
  2. Lawyers for both men were not provided with the full prosecution file until after the trial had begun and they were not allowed to cross-examine prosecution witnesses.
  3. Each of the six men who made confessions or admissions alleged that they were subject to serious physical mistreatment and were thereby forced to make untrue statements. The men were not allowed to instruct or be examined by independent medical examiners at any point prior to, during, or after the trial, despite the allegations that they had been induced to make confessions under torture.
  4. At trial the only medical evidence regarding injuries to Husain Ali Moosa and Mohamed Ramadan came from Dr Mohammed Nour al Din Ahmad Ans Fowda of the ‘Public Prosecution General Directorate of Forensic Science’. Defence requests for the Court to order an independent investigation into the allegations of mistreatment were denied.

Post-trial medical evidence and further investigations

22.  Reviews of the medical evidence were obtained on behalf of Husain Ali Moosa and Mohamed Ramadan from Dr Brock Chisholm, an internationally renowned expert in the investigation of torture, based at St Georges Hospital Medical School, London. Dr Chisholm stated that neither forensic medical report considered at trial complied with the requirements of the Istanbul Protocol: the UN manual dealing with the effective investigation and documentation of torture evidence. Dr Chisholm was a ‘Contributing Author’ to the Istanbul Protocol, a fact that underlines his expertise in this area. In particular, he opined: the reports were not independent, did not properly record all injuries, did not recount any history given by either man as to how they came to be injured, did not consider causation or provide any rationale for the injuries and the examinations were not conducted in the presence of a lawyer. In fact a police officer was present: a significant negative factor where mistreatment is being alleged. BHRC further notes that Husain Ali Moosa and Mohamed Ramadan were not examined until 9 and 12 days after their arrests[8].

23.  BHRC has seen Dr Chisholm’s reports. His conclusions in respect of the reports of Dr Fowda are stark: the report regarding Mohamed Ramadan “fails in almost all aspects of what is required in a forensic investigation of possible torture. The report provided to me is in complete violation of the internationally recognised Istanbul Protocol and should therefore be completely disregarded”. A similar conclusion was reached with respect to the report regarding Husain Ali Moosa.

24.  The reports of Dr Chisholm have formed a central part of complaints of torture made by Husain Ali Moosa and Mohamed Ramadan to the Ombudsman for the Ministry of the Interior. In October 2016, the Ombudsman referred the cases to the Special Investigation Unit of the Public Prosecution Office (SIU) but has declined to disclose the result of his own investigations to Husain Ali Moosa, Mohamed Ramadan or their lawyers, or indeed to indicate whether this process has reached a conclusion. There has been no disclosure from the SIU. BHRC understands that Dr Chisholm has offered to assist the Ombudsman and the investigation of these matters but has not received any reply.

25.  These cases are amongst a number of cases about which UN Special Rapporteurs have formally and repeatedly expressed concern to Bahrain[9].

Relevant domestic law

26.  The Bahrain Constitution guarantees the integrity of the person[10]. In particular the Constitution prohibits torture and other degrading treatment and expressly declares that forced confessions shall be treated as null and void[11].

27.  The Constitution guarantees due process for all accused, including access to lawyers of their own choice[12].

28.  The Code of Criminal Procedure further guarantees an arrestee’s integrity and right of access to lawyers[13]. Lawyers for an accused are entitled to be present at an investigative procedure[14], and the accused is entitled to full disclosure[15]. The Public Prosecutor should only question an accused in the presence of his lawyer, on proper notice[16]. The lawyer must be given advanced access to the investigation[17]. At criminal trial, witnesses for the prosecution shall be examined and cross-examined by the Public Prosecutor and Defence respectively, and then defence witnesses shall be examined and cross-examined by Defence and Prosecutor[18]. The judges must only rely upon evidence before them, and must ignore any statement made by the accused or other witness, that is proven to have been made by coercion[19]. The judgment must state the reasons upon which it is based[20].

29.  The death penalty must not be carried out unless the King gives his approval[21].

30.  Anti-terrorism legislation has allowed for suspects to be detained without reference to a court and prior to interrogation by the Public Prosecutor for up to 15 days[22], but no provision allows for exclusion of defence lawyers up to the start of trial.

Relevant International Law

31.  Bahrain acceded to the UN Convention Against Torture (CAT) on 6 March 1998 and the International Covenant on Civil and Political Rights (ICCPR) on 20 September 2006.

32.  Article 1 of the CAT defines torture as the infliction of severe physical or mental pain, in particular during interrogations. Article 2 prohibits torture in all circumstances. Article 16 further requires state parties to prevent cruel, inhuman or degrading treatment, which does not constitute torture. Parties must promptly investigate any allegations of torture, Articles 12 and 13 (further referred to below), and must prohibit the use of evidence gained under torture, Article 15. The prohibitions are absolute and non-derogable.

33.  Article 6 of the ICCPR recognises the individual’s inherent right to life and has been described as a “supreme right” which should be interpreted widely and from which no derogation is allowed. Although abolition of the death penalty is not required by Article 6, it is clear that the UN Human Rights Committee (UNHRC) considers that it is implicit that abolition is desirable[23]. Furthermore, the UNHRC vigorously encourages ratification of the Second Optional Protocol to the ICCPR (abolition) in its dialogues with state parties. International pressure for the abolition of the death penalty has also been demonstrated in reaction to the executions of three men on 15 January 2017 by Bahrain[24], and by state recommendations in the recent UN Universal Periodic Review (UPR) cycle[25].